March 11, 2011
Pennsylvania, New York, and the EPA: A Case Study in Varied Environmental Regulatory Response
Speaking of looking both forward and back in environmental law, a case study in regulatory response to energy development is rapidly unfolding. Last week, the New York Times ran several stories on state and federal responses to a rapid expansion of natural gas extraction from shales—an expansion enabled by a technique called hydraulic fracturing (also called "fracking" or "fracing"). In those articles, the Times worried that the wastewater from gas wells in the Marcellus Shale (which underlies New York, Pennsylvania, and other parts of Appalachia) is more radioactive than suggested by New York's recent comprehensive environmental impact statement on high water volume fracking. The Times also suggested that wastewater treatment plants might not be adequately treating the water from these wells. Pennsylvania's Department of Environmental Protection promptly struck back on Monday, announcing the results of 2010 in-stream water quality testing that "showed levels at or below the normal naturally occurring background levels of radioactivity" and asserting, "We deal in facts based on sound science." The Times has also expressed concerns that the EPA—which has embarked upon a federal study of the effects of hydraulic fracturing on groundwater—might bend to industry's and energy states' requests to narrow the scope of its study. In testimony to Congress in the midst of the Times's investigative series on fracking, Administrator Jackson indicated that the EPA would explore radioactivity concerns.
As the recent focus in the news highlights, states and the federal government have begun to pay more attention to fracking as it expands. New York has taken a somewhat precautionary approach under its Environmental Quality Review Act—conducting the lengthy state environmental impact statement mentioned above and holding off on granting permits to high water volume fracking operations. Pennsylvania, on the other hand, has aggressively forged ahead with gas development while beefing up some of its environmental regulations. And it appears that gas may soon receive an even more favored status in Pennsylvania; on Wednesday, an organization that has consistently expressed concerns about the safety of fracking reported that Governor Tom Corbett has granted the head of Pennsylvania's Department of Community and Economic Development the power to "expedite any permit or action pending in any agency where the creation of jobs may be impacted."
If you wish to follow the unfolding regulatory saga, the EPA's Hydraulic Fracturing site offers periodic updates on the proposed scope of the EPA's study of hydraulic fracturing and the timeline for that study. Pennsylvania's Department of Environmental Protection posts frequently with statistics on wells drilled and regulatory updates in the fracking area (scroll down after following the link), and New York's Department of Environmental Conservation's regulatory activities related to shale gas drilling can be located on the agency's Marcellus Shale page. For any professors wanting good fracking graphics, the New York Times has a rich set of pictures and videos. In addition to offering an interesting case study in regulatory response, fracking involves a rich array of environmental regulations. The Resource Conservation and Recovery Act, Emergency Planning and Community Right-To-Know Act, Safe Drinking Water Act, Clean Air Act, and Clean Water Act (among others) all come into play under certain fracking scenarios: Chemicals must be transported to and used on site, wastewater must be disposed of—typically through POTWs or in underground injection wells (or possibly land application), and rigs and other on-site equipment generate air emissions.
March 10, 2011
Plater on Deepwater Horizon and TVA v. Hill
Environmental law, by definition, looks forward. But it also pays to look back.
The first, "Lessons from Disasters: What We Are Learning from the BP Deepwater Blowout in the Gulf of Mexico That We Should Have Learned 21 Years Ago in Alaska," draws on Prof. Plater's experience as Chair of the Alaska Oil Spill Commission's Legal Task Force following the Exxon-Valdez disaster. Any examination of the Deepwater Horizon oil spill, of course, raises questions not just of environmental degradation but of energy planning, national security, the debate over peak oil, sustainable development, and the direction of our society itself.
The second talk will be delivered as the annual Wallace Stegner Lecture, sponsored by the Wallace Stegner Center for Land, Resources, and the Environment. As counsel for farmers, Cherokees, and environmentalists in the U.S. Supreme Court, Prof. Plater is perhaps better equipped than anyone to comment on what one of the most important cases in the field, TVA v. Hill, has to teach us about where environmental law -- and environmentalism -- is headed today. The title of the lecture is "Classic Lessons from a Little Fish in a Pork Barrel."
Prof. Plater's remarks on the Deepwater Horizon begin at 12:15 p.m. Mountain (2:15 p.m. Eastern; 11:15 a.m. Pacific).
His Wallace Stegner Lecture will begin at 6 p.m. Mountain (8 p.m. Eastern; 5 p.m. Pacific).
If you cannot join live in Salt Lake City, there will be simultaneous webcasts at www.ulaw.tv.
March 9, 2011
Earlier this week, Tim DeChristopher was found guilty by a Utah jury for unlawfully interfering with a public auction for oil and gas leases on federal lands near national parks in southern Utah. In many ways, the result was not surprising because there is little dispute that DeChristopher posed as an oil man and made and won bids on leases with no intention of paying for them.
Despite the clear cut nature of his case, this trial attracted national and even international media attention, including the New York Times, the Los Angeles Times, and the Guardian, to name a few. The reason for all the attention boils down to DeChristopher’s purpose in participating in the auction—for him it was a form of environmental protest mainly relating to climate change. Particularly from environmental quarters, DeChristopher’s trial is a story of an environmentalist so committed to combating climate change that he was willing to serve federal prison time if that is what it took to make a difference, see Time's Eco Centric Blog, Bill McKibben on Grist, and Robert Redford on the Huffingtonpost as examples. This line of thinking paints DeChristopher's actions as heroic—transforming him into something of a Gandhi for the planet.
To me the narrative of DeChristopher as noble activist misses the point. While certainly there is little dispute that DeChristopher’s actions will land him in prison and that he is willing to go there due to his beliefs, his actions are something to bemoan rather than celebrate.
First, while I respect his ideals, it is hard to see his actions as anything other than misguided. Even in the most generous light, how does posing to be an oil man and making fake bids on gas leases amount to anything but an empty symbolic gesture? There is little doubt that these oil and gas reserves are very modest and perhaps worthless. Why did he pick that fight? When it comes to climate change, aren’t there a bazillion more pressing problems than these gas leases?
Second and more importantly, even if these oil and gas leases should warrant our attention, there are plenty of ways to oppose them that are not only legal but also much more likely to prove successful than the route DeChristopher took. The leases were vulnerable to a number of significant political and legal challenges. Interestingly, these alternative tools—not DeChristopher’s actions—have at least stalled and in many cases stopped most of the leases at issue (and many others as well). DeChistopher threw himself on the road when he could have just helped to build a much more effective road block. Sure he wouldn’t have gotten all the press, but he would have been more likely to make a difference and done this without risking prison time. DeChirstopher’s methods do not amount to heroism. Instead, they are silliness.
Third, he did not need to break the law to make his point. Why did he have to pose to be someone he wasn’t and lie to the federal government during the auction? Even if all he wanted to do was protest, aren’t there many other ways to protest that would not have left him legally vulnerable?
DeChistopher made some mistakes. His empty gesture, his backwards strategy, his lies, and entanglement with the law were all mistakes. Yet, instead of trying to find a quiet way out, he held press conferences. Instead of owning up, he embraced the celebrity of the moment.
Certainly, DeChristopher’s actions have lessons for activists. Unfortunately, in the rush to praise his good intentions, the real lesson has been lost. As admirable as we might find his ideals, we need to understand his actions are not admirable. They are far from it. After his trial, DeChristopher invited others who were true to the cause to join him in prison. I hope activists see this invitation to join him for what it is: an invitation to join the ranks of the misguided who have squandered their potential.
- Brigham Daniels
March 8, 2011
Hoping for the Least-Bad in AEP v. Connecticut
The Supreme Court will hear oral argument in its second major climate change case soon. Argument in American Electric Power Co. v. Connecticut is scheduled for Tuesday, April 19. The questions presented are (1) whether Connecticut and other plaintiffs have standing; (2) whether plaintiffs’ nuisance claim is preempted by the Clean Air Act; and (3) whether plaintiffs’ claim constitutes a political question.
I would like to think that this decision, like Massachusetts v. EPA, might, in the words of Georgetown Professor Richard Lazarus, be “stunning” and “A Breathtaking Result for Greens” (see The Environmental Forum®, May/June 2007) but the converse seems much more likely. With the recusal of Justice Sotomayor, the best outcome for greens would appear to be a 4-4 tie. But how likely is it that the four justices that might possibly rule in favor of plaintiffs on all the questions presented really will?
It seems, then, that the most that greens can hope for this time around is the least-bad outcome. My sense of the spectrum from most-bad to least-bad is the following:
1) The Court overrules Massachusetts v. EPA on standing.
2) The Court leaves Massachusetts v. EPA intact, but holds that Connecticut doesn’t have prudential standing (as has been argued by the Solicitor General).
3) The Court holds that plaintiffs' nuisance claim is a political question.
4) The Court holds that plaintiffs' nuisance claim is preempted.
The three worst outcomes listed above embrace the view that climate change policy is not the judiciary’s business. The final outcome -- holding in favor of American Electric Power Co. on the basis of preemption -- endorses the different view that climate change policy isn’t the judiciary’s business only if the legislative and executive branches have made it their business. I happen to think that we will need all our governance institutions to be able to step up to deal with the problem of climate change, so of the options on my all-bad spectrum, this is my preference. What's yours?
March 7, 2011
Lions, Tigers, and Bears...All Gone?
A recent CNN article described the plummeting population of big cats in Africa, noting that populations have dropped from 450,000 fifty years ago to as few as 20,000 today. Worldwide tiger populations have experienced similar drastic declines, with an estimated 95% drop in population over the past one hundred years - from 100,000 tigers at the turn of the 20th Century to as few as 3,200 today. Of course, scientists are similarly concerned about the implications of climate change for polar bear populations, not to mention numerous other bear populations around the world. These scenarios raise interesting questions about the significance of "charismatic megafauna" in either spurring environmental protection (cute and cuddly panda bears) or in exacerbating species decline due to the "prize value" of the animal (ivory elephant tusks, tiger meat in Asian markets).
Charismatic megafauna are often described as species that people "really care about," such as pandas, whales, and bald eagles, to name a few. So what does it say about the status of global biodiversity when we continue to witness precipitous declines in populations of charismatic megafauna? Perhaps the problem is jurisdictional: lions and tigers are distributed in developing countries with far less stringent environmental protections and where the animal's economic value is far higher when it is dead rather than alive. The case of mountain lions and wolves in the U.S. lends evidence in this regard, as each (the western mountain lion, at least) is recovering in population size and regaining portions of former habitat presumably due to the (relatively recent) focus on environmental protection throughout their habitat range. But as the polar bear and a variety of other species demonstrate, economic growth and habitat fragmentation also play a key role in the decline of these species. So, if lions, tigers, and bears are charismatic megafauna that people "really care about," what happens to global resources that people hold in far less regard?
- Blake Hudson